Citation Nr: 0918613
Decision Date: 05/19/09 Archive Date: 05/26/09
DOCKET NO. 04-16 654 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUES
1. Entitlement to an effective date prior to July 19, 2002
for the award of service connection for post-operative
residuals of a bowel perforation and a healed surgical scar
of the central abdomen, both awarded under 38 U.S.C. § 1151.
2. Entitlement to an initial rating greater than 40 percent
for post-operative residuals of a bowel perforation.
3. Entitlement to an initial rating greater than 10 percent
prior to August 30, 2002 and a rating greater than 20 percent
from August 30, 2002 for a healed surgical scar of the
central abdomen.
4. Entitlement to an effective date prior to July 6, 2004
for the award of a 10 percent disability evaluation for the
Veteran's hearing loss disability.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
S. M. Marcus, Associate Counsel
INTRODUCTION
The appellant is a veteran who served on active duty from
February 1968 to January 1970.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from a March 2003 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Detroit,
Michigan. The Veteran had a hearing before the RO in June
2004 and the transcript is of record.
The Board notes a rating decision dated June 2006 awarded the
Veteran an increased rating from 10 percent to 20 percent
disabling for his abdominal scar, effective August 30, 2002.
Regardless of the RO's action, after the Veteran has
perfected his appeal, a subsequent rating decision awarding a
higher rating, but less than the maximum available benefit,
does not abrogate the pending appeal. AB v. Brown, 6 Vet.
App. 35 (1993). Accordingly, the issue is still properly
before the Board here and the issue has been appropriately
rephrased above.
The Board further notes the Veteran was also awarded service
connection for a mood disorder, secondary to the service-
connected post-operative residuals of the bowel perforation,
in a November 2003 rating decision. The Veteran filed a
notice of disagreement as to the effective date of the mood
disorder dated January 2004. Thereafter, the RO provided the
Veteran a February 2006 Statement of the Case (SOC) as to
this issue. The Veteran had until May 2006 to perfect his
appeal, but failed to do so. See 38 C.F.R. § 20.302.
Accordingly, the claim is final. See 38 C.F.R. §§ 20.200,
20.202 and 20.302. Current arguments raised by the Veteran's
representative, dated in 2008, indicate the earlier effective
date issue on appeal includes all residuals granted as a
result of the bowel perforation, to include the Veteran's
mood disorder. However, for reasons explained above, the
Board finds the issue was not timely appealed and, therefore,
is not properly before the Board here.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the Veteran
if further action is required on his part.
REMAND
The last Supplemental Statement of the Case (SSOC) was issued
in June 2006. Thereafter, a considerable amount of medical
evidence was received by the RO, to include sporadic
complaints and treatment for his abdomen pain and other
digestive problems. If a SOC is prepared before the receipt
of further evidence, a supplemental statement of the case
(SSOC) must be issued to the Veteran, as provided in
38 C.F.R. § 19.31, unless the additional evidence is
duplicative or not relevant to the issue(s) on appeal.
38 C.F.R. § 19.37(a). In this case, the newly obtained
evidence was not duplicative of evidence already associated
with the claims file, and is relevant to the issues.
Therefore, in accordance with 38 C.F.R. § 19.37(a), the case
is returned to the RO for consideration and the issuance of a
SSOC.
This claim stems from a March 2003 rating decision granting
the Veteran benefits for disabilities sustained from a bowel
perforation during VA medical treatment under 38 U.S.C. §
1151. Specifically, the Veteran sought treatment at a VA
medical facility in April 2001 for a routine colonoscopy.
The VA nurse administered an enema to the Veteran causing a
perforation to his colon and numerous complications and
surgical procedures resulted therefrom.
The current effective date of his service-connected
disability ratings is July 19, 2002, the date he filed his
claim. The Veteran claims he should be awarded an effective
date of April 2001, the date of the injury, because the
hospitalization prevented him from filing a claim earlier
than July 2002. The Veteran further alleges the actual
disabilities are more severe than currently rated.
The VCAA, in part, requires VA to adequately identify the
evidence necessary to substantiate the claim, the evidence
presently of record, and the Veteran's and VA's respective
responsibilities in development of evidence. See Quartuccio
v. Principi, 16 Vet. App. 183 (2002).
Here, although a generic November 2002 duty-to-assist letter
was sent to the Veteran regarding his "claim for benefits"
in general, no letter was sent informing the Veteran of the
elements and evidence necessary to substantiate his specific
claims. That is, to date, no letter has been sent to the
Veteran identifying the correct issues and advising him of
the laws and regulations specific to effective date issues
and increased rating issues. The Veteran is entitled to a
letter adequately identifying the evidence necessary to
substantiate his claims followed by a subsequent
readjudication. See Mayfield v. Nicholson, 444 F.3d 1328,
1333 (Fed. Cir. Apr. 5, 2006).
The duty to assist also includes, when appropriate, the duty
to conduct a thorough and contemporaneous examination of the
Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In
addition, where the evidence of record does not reflect the
current state of the Veteran's disability, a VA examination
must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589
(1991); 38 C.F.R. § 3.327(a).
Here, the last VA examination that addresses the Veteran's
manifestations due to the perforated colon and subsequent
surgeries is dated November 2002, nearly 7 years ago. The
Veteran was also afforded a VA examination in January 2006,
over three years ago, but the examiner solely focused on the
Veteran's scar and did not address the Veteran's other
service-connected residuals. Since that time, the Veteran
has alleged his conditions are more severe than currently
rated and submitted a large amount of medical records
indicative of complaints and treatment for these conditions
since 2006. A new examination is indicated.
The Board also notes, during the pendency of this appeal,
regulatory changes amended the VA Schedule for Rating
Disabilities, 38 C.F.R. Part 4, including the rating criteria
for evaluating skin disorders. See 67 Fed. Reg. 49590 (July
31, 2002). This amendment was effective August 30, 2002. Id.
Although the RO noted the changes in law within the June 2006
SSOC, and indeed granted an increased rating under the new
regulations, the SSOC does not contain notice of the old
regulations and the new regulations. It appears the April
2004 SOC provided the new version of diagnostic code 7804,
but did not include any other new regulation or any of the
old regulations. Accordingly, the RO should give the Veteran
notice of all the old and new applicable regulations and the
opportunity to submit evidence and argument. See Bernard v.
Brown, 4 Vet. App. 384 (1993). Thereafter, the RO should
readjudicate the claim specifically considering both the old
and new criteria.
The RO should also take this opportunity to obtain recent VA
outpatient treatment records from June 2008 to the present.
Earlier Effective Date (Hearing Loss)
An August 2005 rating decision granted an increased rating to
10 percent disabling for bilateral hearing loss, effective
July 6, 2004 and denied claims of entitlement to service
connection for an eye condition, a dental condition and
lumbosacral strain. Thereafter, the Veteran's representative
filed an August 2005 notice of disagreement (NOD) indicating
the Veteran disagreed with "...rating decision dated 8/10/05
for an earlier effective date." Although it is unclear what
issue specifically the representative was referring to, the
only issue with the possibility of an effective date claim
within the August 2005 rating decision is the hearing loss
issue.
Accordingly, the claim must be remanded to allow the RO to
provide the Veteran with a statement of the case (SOC) on
this issue. Manlincon v. West, 12 Vet. App. 238, 240-41
(1999); see also Godfrey v. Brown, 7 Vet. App. 398, 408-410
(1995); Archbold v. Brown, 9 Vet. App. 124, 130 (1996);
VAOPGCPREC 16-92 (O.G.C. Prec. 16-92). However, the issue
will be returned to the Board after issuance of the SOC only
if perfected by the filing of a timely substantive appeal.
See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); Archbold,
9 Vet. App. at 130.
Accordingly, the case is REMANDED for the following action:
1. The RO must ensure that all VCAA notice
obligations are satisfied in accordance
with 38 U.S.C.A. §§ 5102, 5103, and 5103A,
implementing regulations, interpretative
precedent court decisions, and any other
applicable legal precedent concerning the
claims for an earlier effective date,
earlier than July 19, 2002, and increased
initial ratings for the grant of post-
operative residuals of a bowel perforation
and well-healed surgical scar to the
abdomen.
2. Obtain the Veteran's medical records
from the VA Medical Center in Ann Arbor,
Michigan from June 2008 to the present.
All efforts to obtain VA records should be
fully documented, and the VA facility must
provide a negative response if records are
not available.
3. After the above VA records are obtained,
to the extent available, schedule the
Veteran for appropriate examination(s) for
his post-operative digestive residuals and
abdomen scar to ascertain the current
severity of his conditions. The examiner
must conduct all necessary tests to
ascertain the manifestations, if any, of
the Veteran's post-operative perforated
colon and abdomen scar, including but not
limited to, digestive and gastrointestinal
complaints. The claims folder must be
reviewed by the examiner(s) and the
examiner(s) should provide a complete
rationale for any opinion given without
resorting to speculation.
4. After the above is complete,
readjudicate the Veteran's claims
regarding the effective date and initial
rating for the post-operative residuals of
a bowel perforation and surgical-scar of
the central abdomen. If the claims remain
denied, issue a supplemental statement of
the case (SSOC) to the Veteran and his
representative, which includes notice of
the prior and new rating criteria for skin
disabilities. An appropriate period of
time should be allowed for response before
the case is returned to the Board.
5. Provide the Veteran and his
representative a statement of the case as
to the issue of entitlement to an
effective date earlier than July 6, 2004,
for the award of a 10 percent disability
evaluation for the Veteran's hearing loss
disability. The Veteran should be informed
that he must file a timely and adequate
substantive appeal in order to perfect an
appeal of these issues to the Board. See
38 C.F.R. §§ 20.200, 20.202, and
20.302(b). If a timely substantive appeal
is not filed, the claim should not be
certified to the Board. If so, subject to
current appellate procedures, the case
should be returned to the Board for
further appellate consideration, if
appropriate.
The Veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
No action is required of the appellant until further notice.
However, the Board takes this opportunity to advise the
Veteran that the conduct of the efforts as directed in this
remand, as well as any other development deemed necessary, is
needed for a comprehensive and correct adjudication of his
claims. His cooperation in VA's efforts to develop his
claims, including reporting for any scheduled VA examination,
is both critical and appreciated. The Veteran is also
advised that failure to report for any scheduled examination
may result in the denial of a claim. 38 C.F.R. § 3.655.
These claims must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
_________________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2008).